30 N.H. 318 | Superior Court of New Hampshire | 1855
The defendant, a deputy sheriff, took certain chattels, property of the plaintiff, upon an execution in favor of Knowlton against him, and sold them, and applied the proceeds in discharge of the execution. The plaintiff brings against the officer an action of trespass, and the question is, if the latter can justify himself under this execution.
And first, it is said, in behalf of the plaintiff, that the judgment recited in the execution being “ against Benjamin C. Keniston of, &c., administrator of the estate of James M. Knowlton, late of, &e., deceased,” is a judgment against the plaintiff, in his capacity of administrator, and the precept to cause the sum recovered “ to be levied of the goods,
At common law, the judgment de bonis testatoris is rendered “that the said John recover against the said Jane, executrix as aforesaid,-pounds, &c., to be levied of the goods and chattels, which were of the said J. D., deceased, at the time of his death, in the hands of said Jane to be administered.” 5 Went. Pl. 414; Imp. P. C. P. 483; 4 Lill. Ent. 475, 478, 504; 10 Went. Pl. 458; Piper v. Goodwin, 23 Maine Rep. (10 Shep.) 255; Atkins v. Sawyer, 1 Pick. 353; Merritt v. Seaman, 2 Seld. 170.
A similar form of entry is used in case of a judgment against an heir. 2 Lili. Ent. 504.
And a like form was adopted in the case of a judgment to be levied upon property attached, where a subsequent bankruptcy had been pleaded. Kittridge v. Warren, 14 N. H. Rep. 509.
By the case of Pilsbury v. Hubbard, 10 N. H. Rep. 224, it appears that such has been the practice in this State, and though a loose and negligent practice had sprung up in one or two counties, of rendering the judgment against the executor or administrator generally, yet the learned chief justice declares the practice to be unfounded and without authority.
The writ of execution should recite the judgment as “ to be levied of the goods, &e., of the deceased,” and the precept should be to levy on the goods, &e., of the deceased. 2 Lill. En. 584, 586; 10 Went. Pl. 321, 322.
Though a plaintiff is described as executor or administrator, yet if it is not alleged that the promises were made in the lifetime of the testator, or were made to him, or were made to the plaintiff as administrator, the action will be re
In Merritt v. Seaman, 2 Seld. 168, the declaration commences: C. M., executor, &c. of J. S., deceased, complains, &c., without any other indication that the suit was brought by him in a representative character, and judgment was rendered against the plaintiff, upon a set-off, “ to be levied of the goods of the testator, in his hands to be administered,” and it was held that this mode of describing the plaintiff as executor, was to be regarded as merely a descriptio personae, in no respect changing the rights of the parties, and that the action being brought in the plaintiff’s individual character, a judgment against him in a representative character was erroneous.
We, therefore, regard this execution as running against the plaintiff, in his individual character, and his own goods and estate were liable to be levied upon under it.
The principle is settled that a sheriff has nothing to do with the propriety of the process under which he acts, provided the court has jurisdiction, and the process is regular upon its face. State v. Weed, 1 Foster’s Rep. 262.
The jurisdiction of the court of common pleas to issue an execution for costs is not denied. B ut it is contended that an execution for costs against an administrator, should run not against the goods of the administrator himself, but against the goods of the deceased, in his hands to be administered. If this is a proposition universally true and without any exception, it might furnish ground for an argument that the execution must have been issued, in this case, either erroneously or irregularly. If otherwise, if there is any case, in which an execution may properly issue against the proper goods of an administrator, then the execution here is well enough, so far as the officer is concerned. He is not bound to look beyond the face of the execution, and if there is
The case of Pilsbury v. Hubbard, before cited, is a direct authority that where the cause of action is alleged to have arisen after the death of the testator or intestate, and the executor or administrator might sue in his own right, without describing himself as such, judgment may vrell be entered against him de bonis propriis, the allegation that he Was executor or administrator being considered in such case as a descriptio personae.
So that upon the face of the execution there was nothing that indicated any error or irregularity.
•If the process here did issue either erroneously or irregularly, the court having jurisdiction, it is not void, but is at most voidable. If erroneous, a party even may justify under it, whatever was done by virtue of it while it was in force ; and if irregular, it is a justification for the party till set aside. Much more must it be so in the case of an officer. See Blanchard v. Goss, 2 N. H. Rep. 491, where this subject is ably discussed by Richardson, C. J.
Judgment for the defendant.
